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2002 DIGILAW 111 (CAL)

State of West Bengal v. Noor Ahmed

2002-02-20

Pradip Kumar Biswas, Sujit Barman Roy

body2002
JUDGMENT The Court: By this application under sub-section(2) of section 439 of the Code of Criminal Procedure, petitioner being the State of West Bengal seeks to challenge the orders dated 9.8.2001 and 23.8.2001 passed by the ld. Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas in connection with Watgange P.S. Case No. 153/2001 granting ad-interim bail to the two accused/opposite parties being Noor Ahmed and Subrata Hazra on the very first day of their production under arrest before the said Court. 2. Case in brief is that one Rajiv Agarwal being the informant of this case is the Managing Director of Tirupati Vancom Private Ltd. having its registered office at 1, Rawdon Street, Calcutta-17. He lodged a written complaint before the said Police Station on 9.8.2001 against the opposite parties making serious allegations which prima facie constitute offences under sections 386/387/114 I.P.C. In view of facts and circumstances alleged in the complaint, allegations appear to be of extremely serious nature. On the basis of the said complaint aforesaid case/FIR was registered at the said Police Station. Pursuant to the said complaint, Investigation Officer took up investigation and recorded statements of some witnesses and arrested two opposite parties/ accused on 9.8.2001 and produced them before the ld. S.D.J.M. with a prayer to remand them to police custody for 14 days. Ld. S.D.J.M. on perusal of the FIR, Case Diary and the remand report rejected the prayer of the I.O. for police custody. Ld. S.D.J.M. was of the further view that the allegations made against opposite party merely constitute breach of contract. Dispute between the parties is of civil nature and hence it does not constitute any offence at all and accordingly, directed that Both the accused persons may find bail of Rs. 4000/- each with two sureties of Rs.2000/- each with condition to meet the I.O. once a week till 23.8.2001." This order dated 9.8.2001 reads as under:- "Perused the FIR. Accused Nos.(1) & (2) are brought under arrest and taken into custody, who are named in FIR. I.O. prays for P.C. till 22.8.2001 C.D. is produced. Bail petitions are filed on behalf of accused Nos.(1) & (2). Perused the forwarding report and the C.D. Bail prayer is opposed by ld. Accused Nos.(1) & (2) are brought under arrest and taken into custody, who are named in FIR. I.O. prays for P.C. till 22.8.2001 C.D. is produced. Bail petitions are filed on behalf of accused Nos.(1) & (2). Perused the forwarding report and the C.D. Bail prayer is opposed by ld. A.P.P. It appears on perusal of all materials on record that there is an agreement between the parties over export of certain items and the point of controversy between the parties is the rate to be charged. The de facto complainant i.e. the 1st party could not but agree to the terms and conditions of the contract. According to the agreement all disputes shall be referred to arbitrator. The demand of money for Rs. 20,000/- was recovered for the de facto complainant as per agreement. So there is no element of the offence of extortion. It is hereby breach of contract which is civil in nature. Considering this the prayer for P.C. is rejected. Both the accused persons may find interim bail of Rs. 4000/- each with two sureties of Rs. 2000/- each with condition to meet the I.O. once in a week till 23.8.2001 Call for C.D. Return the C.D." 3. Again by an order dated 23.08.2001 ld. S.D.J.M. rejected the prayer of the I.O. for cancellation of bail of the opposite parties and extended the interim bail till 24.9.2001. Said order dated 23.8.2001 reads as under:- "Seen the prayer of I.O. forwarded by the D.C.P.D. who prays for cancellation of A.I. bail of accused Nos. 1 & 2 and taking them into custody and remanded to 14 days police custody on the ground stated therein. C.D. is produced by I.O. Petitions are filed on behalf of accused Nos. 1 & 2 and praying for confirmation of A. I. bail and withdrawing the condition. Hd. These prayers from both sides. As there are allegations of threatening against these accused persons from the side of the prosecution I am unable to confirm A.I. bail and bail condition of these accused. Hence such prayer is rejected. However, as these accused are to meet the I.O. once in every week the work of investigation of the case would not suffer. So, I am not in favour of cancelling bail order of the same accused. Hence such prayer is rejected. However, as these accused are to meet the I.O. once in every week the work of investigation of the case would not suffer. So, I am not in favour of cancelling bail order of the same accused. Hence, interim bail of these accused is extended till 24.9.2001 and they will continue to meet the I.O. once in every week till said date. Call for C.D. again." 4. State has preferred the instant petition against the above quoted orders dated 9.8.2001 and 23.8.2001 for cancellation of bail of the O.Ps. 5. Further case of the petitioner is that the opposite parties on various occasions threatened and intimidated the complainant and other witnesses for the prosecution. Various instances of such intimidation have been stated in this petition. Even the family members of the complainant have not been spared. For the sake of brevity we do not like to give the details of such incidents. Details of such incidents have been stated in the petition itself apart from some incidents of such intimidation have also been set out in the complaint itself. 6. We have heard learned Counsels for both sides. 7. We have perused the complaint. After going through the complaint we have no hesitation in our mind to hold that the FIR indeed discloses a prima facie case under section 386/387/114 IPC. Sections 386 and 387 prescribe punishment for different types of extortions. The offence of extortion have been defined in section 383 IPC. If it is read along with the definition of the term 'valuable security' as given in section 30 of the Penal Code, one is left with no doubt that in view of the allegations made in the FIR, a prima facie case is made out for offences of extortion. Allegations are of very serious nature. This is not a case of a simple type of extortion. However, for the sake of brevity we do not like to give the details of the allegations made in the complaint. A bare reading of the complaint/FIR clearly reveals a prima facie case of the aforesaid offences. Therefore, the learned Magistrate was indeed wrong in holding that the matter involved is of purely civil nature or that the allegations made in the complaint/FIR do not disclose any cognizable offence. A bare reading of the complaint/FIR clearly reveals a prima facie case of the aforesaid offences. Therefore, the learned Magistrate was indeed wrong in holding that the matter involved is of purely civil nature or that the allegations made in the complaint/FIR do not disclose any cognizable offence. It is equally surprising that if the learned Magistrate was so sure that the allegations disclose only a civil dispute and do not contain any ingredient of the offence of extortion, what prompted him to grant the opposite parties only interim bail? If that was his finding, learned Magistrate could have granted permanent bail to the opposite parties. It is equally mysterious that by granting interim bail, the learned Magistrate went on granting extension after extension of bail to the opposite parties and the opposite parties are still on interim bail. Does it mean that the learned Magistrate was really not sure as to the correctness of his conclusions arrived at ? 8. As regards allegations of terrorisation of the complainant and witnesses, Mr. D. K. Dutta learned Counsel for the opposite parties contended that the documents on which the case of terrorisation of the complainant and his witnesses are based have not been furnished to the opposite parties. Therefore, the opposite parties are prevented from making effective submission against such allegations. However, the gist of all such allegations including various incidents of intimidation of the complainant and his witnesses have been elaborately stated in the complaint itself and also in the instant petition. In the affidavit-in-opposition filed on behalf of the opposite parties, all such allegations have been dealt with. The contention of Mr. S.K. Moitra, learned Additional P.P. in reply to the aforesaid grievance of the opposite parties is that all such incidents of terrorisation and intimidation have been recorded in statements of witnesses under section 161 Cr.P.C. in course of investigation. Investigation is not yet over. Therefore, such copies cannot be supplied to the opposite parties/accused persons until and unless the investigation is over. However, it needs to be mentioned here that most of such allegations have been stated in detail in the complaint itself. Copy of the said complaint have been annexed to the petition and the opposite parties have been furnished with the same. Therefore, such copies cannot be supplied to the opposite parties/accused persons until and unless the investigation is over. However, it needs to be mentioned here that most of such allegations have been stated in detail in the complaint itself. Copy of the said complaint have been annexed to the petition and the opposite parties have been furnished with the same. Therefore, opposite parties cannot have any grievance on this score so far as allegations of terrorisation of the complainant and witnesses are set out in the complaint. Be that as it may, question is even if the alleged incidents of terrorisation of the complainant and witnesses that took place after the complaint was lodged are excluded from the consideration, whether bail granted to the opposite parties can be cancelled? 9. Mr. Dutta learned Counsel for the opposite parties while drawing our attention to section 437 of the Code of Criminal Procedure contended that it provides that when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an Officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but (i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. However, the proviso thereto further provides that in certain circumstances as set out therein such offender can be released on bail. Therefore, from this provision it appears that a Magistrate has jurisdiction to grant bail to a person accused of a non-bailable offence unless there appears, reasonable grounds for a believing that such person is guilty of an offence punishable with death or imprisonment for life. Mr. Dutta further contends that it is, therefore, apparent that the Magistrate has a discretion to grant bail to an accused on the very first day of his production who is accused of a non-bailable offence provided such offence is not punishable with death or life imprisonment. Relying upon this provision it is the contention of Mr. Dutta that Magistrate had jurisdiction to grant bail to the opposite parties in the circumstances of the case. Relying upon this provision it is the contention of Mr. Dutta that Magistrate had jurisdiction to grant bail to the opposite parties in the circumstances of the case. In such situation even if the bail was granted improperly, same cannot be cancelled on that ground alone unless it is found on facts that such accused person had misused the liberty granted to him. To buttress his aforesaid contentions, learned Counsel for the opposite parties referred to two decisions of the Apex Court in Dolat Ram vs. State of Haryana, (1995) 1 SCC 349 and Sudhendu Mishra vs. Subrata Kumar Mishra, 1999 CrLJ 4063 . In Dolat Ram's case the Apex Court made the following observations:- "Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail, (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on record of the possibility of the accused absconding is yet another reason justifying cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, was lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of factors relevant for rejecting bail in a non-bailable case in the first instance and cancellation of bail already granted." From the aforesaid decision it is undoubtedly true that it has been pointed out that normally if there is no supervening circumstances the bail should not be cancelled. At the same time the Supreme Court indicated in the above quoted observations that the guideline given therein is merely illustrative and not exhaustive. 10. Somewhat similar decision was rendered by the Apex Court in Bhagiratsingh Judeja vs. State of Gujarat, AIR 1984 SC 372 . Again similar is the view of the Supreme Court expressed in Delhi Administration vs. Sanjay Gandhi, AIR 1978 SC 961 . 10. Somewhat similar decision was rendered by the Apex Court in Bhagiratsingh Judeja vs. State of Gujarat, AIR 1984 SC 372 . Again similar is the view of the Supreme Court expressed in Delhi Administration vs. Sanjay Gandhi, AIR 1978 SC 961 . But it needs to be mentioned here that incidents of terrorisation of the complainant and witnesses started in various ways are stated in the complaint itself. In view of such allegation the clear picture that emerges is that if the accused persons are allowed to retain their freedom, it may not be conducive to a fair investigation of the case. It is not disputed by either side that the complainant wrote a letter to the Investigating Officer of the case in course of the investigation that he has compromised the matter with the opposite parties and hence the case against the opposite parties may be dropped. This circumstance is not denied by the opposite parties. From this fact possibility cannot be ruled out that the opposite parties by intimidation and other methods of terrorisation compelled the complainant to write such letter to the I.O. of the case in course of the investigation. As has been laid down by the Apex Court in the case of Sanjay Gandhi that the case required to be made out for cancellation of bail is merely preponderance of probability. The general standard in a criminal case to prove the prosecution version beyond reasonable doubt is not the standard required by law in a case for cancellation of bail. The standard required is only preponderance of probability as in civil cases. We have taken note of the allegations made in the complaint. In the context of such allegations, it is difficult to believe that the complainant voluntarily had written such a letter to the I.O. that he has compromised the dispute with the opposite parties. Therefore, we are constrained to hold by applying that standard of proof, namely, preponderance of probability as required in civil cases that the opposite parties by various unscrupulous methods of intimidation and terrorisation compelled the complainant to write such a letter to the I.O. of the case. If that be so, it is not at all safe to allow the opposite parties to remain free and frustrate the investigation. If that be so, it is not at all safe to allow the opposite parties to remain free and frustrate the investigation. In such circumstances even in a case of bailable offence, the bail already granted to an accused can be cancelled. This has been so held by Bombay High Court in AIR 1958 Bombay 406. This decision of the Bombay High Court was approved by the Supreme Court in Sanjay Gandhi's bail cancellation case. 11. On the otherhand Mr. N. N. Gooptu learned Advocate General as well as learned Additional P.P. referred to a decision of this Court in State of West Bengal vs. Anwar, 2000(1)CLJ 354. In that case pursuant to a direction of the Apex Court, a Division Bench of this Court cancelled the bail of a person who was granted bail on an earlier occasion. He was granted bail on a wrong interpretation of law. Therefore, on a fresh consideration of the case pursuant to a direction by the Supreme Court, this Court cancelled the bail granted to Anwar in that case. As against that decision of this Court cancelling the bail of Anwar, the accused filed an SLP before the Supreme Court and we are told that the SLP has been dismissed by the Supreme Court. 12. Therefore, it appears that in an appropriate case bail can be cancelled though granted earlier if such bail was granted on a wrong interpretation of law. Such decision of this Court was not interferred with by the Apex Court in the SLP preferred by the accused in that case. There was no such allegation of intimidation/terrorisation of the witnesses in that case. 13. Learned Additional P.P. further relied upon a decision of the Apex Court in Puran vs. Rambilas, AIR 2001 SC 2023 . In that case the Apex Court held that the concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. In that case the Apex Court held that the concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. In the aforesaid case of Puran, the Supreme Court relied upon another earlier decision of the Apex Court in Gurcharan Singh vs. State, AIR 1978 SC 179 and observed that generally speaking the grounds for cancellation of bail are interference or attempt to interfere with the due course of administration of justice or the evasion or attempt to evade the due course of justice or abuse of the concession granted to the accuse in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous nature of crime like bride burning that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the Lower Court must be corrected. 14. In view of the aforesaid two decisions of the Apex Court we are of the view that intervening misconduct on the part of the accused is not the only ground for cancellation of bail. When an accused has been earlier granted bail by ignoring convincing materials on record or on a wrong interpretation of law is also equally good ground for cancellation of bail. Such circumstances for cancellation of bail may be only illustrative but certainly not exhaustive. If an accused has been granted bail in a case of a serious offence having far reaching effect by ignoring convincing materials on record or on a wrong interpretation of law, the Superior Court has always jurisdiction to correct such abuse of power and cancel the bail. 15. If an accused has been granted bail in a case of a serious offence having far reaching effect by ignoring convincing materials on record or on a wrong interpretation of law, the Superior Court has always jurisdiction to correct such abuse of power and cancel the bail. 15. In the instant case we have no doubt in our mind to hold that the case against the opposite parties is not of an ordinary case of extortion The type of extortion allegedly committed by the opposite parties is bound to adversely affect the trade and commerce of the country and also our foreign exchange income. It is bound to create panic in the mind of those engaged in trade and commerce in view of the serious nature of the allegation made against the opposite parties in the complaint and due to the perverse order passed by the learned Magistrate and hence we have no hesitation in our mind to hold that the bail of the accused must be cancelled. 16. Ultimately, in view of the aforesaid position of law, we are unable to accept the contention of the learned counsel for the opposite parties that even if the accused was wrongly and improperly granted bail, such bail cannot be cancelled subsequently merely on that ground unless it is found that the accused persons have misconducted themselves after their release on bail. 17. After perusing the impugned order we are constrained to observe that it is really mysterious and shocking as to how the learned Magistrate could come to a finding that the case did not disclose the offence of extortion or that even if his aforesaid finding was correct, how he could grant interim bail? It is equally mysterious that even after that he is extending the interim bail granted to the opposite parties time and again. This Court did not grant any stay on the proceeding before the lower court. These facts clearly demonstrate that even the learned Magistrate was perhaps not sure as to the correctness of his order and this order is undoubtedly a perverse order. Such reverse order can certainly be interfered with by a Superior Court on a proper application for cancellation of bail even if the accused is not guilty of any misconduct subsequent to such bail. 18. Such reverse order can certainly be interfered with by a Superior Court on a proper application for cancellation of bail even if the accused is not guilty of any misconduct subsequent to such bail. 18. Under the circumstances we are left with no option but to allow this application preferred by the State of West Bengal and cancel the bail of the opposite parties. We further direct the opposite parties to forthwith surrender before the learned Magistrate. The learned Magistrate shall thereafter remand them to custody. If they do not surrender within 5 days from today, the learned Magistrate shall issue appropriate processes for apprehension of the opposite parties and for their production before his Court and to cancel their bail and remand them to custody. 19. Petition is thus disposed of. S. Barman Roy, J.; P.K. Biswas, J.: Writ petition allowed.